United States District Court, N.D. Illinois, Eastern Division
December 2, 2005.
ENTERTAINMENT SOFTWARE ASSOCIATION; VIDEO SOFTWARE DEALERS ASSOCIATION; and ILLINOIS RETAIL MERCHANTS ASSOCIATION, Plaintiffs,
ROD BLAGOJEVICH, in his official capacity as Governor of the State of Illinois; LISA MADIGAN, in her official capacity as Attorney General of the State of Illinois; and RICHARD A. DEVINE, in his official capacity as State's Attorney of Cook County, Defendants.
The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs Entertainment Software Association, Video Software
Dealers Association, and Illinois Retail Merchants Association
sued several state and local officials seeking to enjoin the
enforcement of Illinois's Violent Video Games Law and Sexually
Explicit Video Games Law. Plaintiffs moved for a preliminary
injunction, and the Court ordered a hearing. All parties
consented to combine the preliminary injunction hearing with
trial on the merits. This constitutes the Court's findings of
fact and conclusions of law under the Federal Rules of Civil
Procedure 52(a). For the reasons stated below, the Court
concludes that both statutes violate the First Amendment and
therefore issues a permanent injunction against their
Findings of Fact The plaintiffs are associations of entities that create,
publish, distribute, sell, and rent video games. The
Entertainment Software Association (ESA) represents video game
creators and publishers; the Video Software Dealers Association
(VSDA) represents home video retailers; and the Illinois Retail
Merchants Association (IRMA) represents Illinois merchants.
The ESA is comprised of publishers of interactive
entertainment, including video games, computer games, and mobile
games. Lowenstein Dep. at 18. Its mission is "to serve the
business and public affairs interests of the entertainment
software industry." Id. at 25. To achieve this mission, ESA
implements a number of programs, such as government relations,
anti-piracy enforcement, intellectual property policy, and media
relations programs. Id. at 26. Among its many activities, ESA
also evaluates proposed legislation regulating the entertainment
software industry and responds to those proposals based on the
mandate given by the membership. Members are updated on the ESA's
positions on particular legislation, including state statutes
regulating video games based on content, contemporaneously. Id.
The VSDA is a trade association for the home video industry
that includes retailers and distributors of home video products,
including video games. Andersen Dep. at 7. The association's many
activities include tracking proposed regulations of video games,
responding to those regulations, and pursuing litigation if
necessary. Decisions to engage in litigation are made by the VSDA
board of directors. Although members do not vote on the VSDA's
stance on all relevant legislation or on the association's
decision to initiate litigation, they can weigh in on VSDA's
actions in a numbers of ways, including telephone calls, emails,
and letters. Id. at 30-43.
IRMA has approximately one thousand retail members, though it
is unclear how many sell or rent video games. Vite Dep. at 26. IRMA's activities
include examining pending legislation in Illinois, developing
position papers, and communicating the association's position to
the General Assembly. IRMA communicates with its members about
these activities through its website and a weekly newsletter
published while the General Assembly is in session. Vite Dep. at
8-10. With regard to the legislation at issue in this case, IRMA
discussed the proposed legislation with between fifty and one
hundred members before it was passed. Id. at 61. IRMA staff
typically determines whether the organization should participate
in litigation after discussing the issue with affected members.
Id. at 40-41. In deciding to join this case, IRMA president
David Vite consulted with several leaders of the association and
also consulted members directly affected by the legislation.
Id. at 43, 55.
The defendants are Illinois public officials: Rod Blagojevich
is the Governor of Illinois; Lisa Madigan is the Attorney General
of Illinois; and Richard Devine is the State's Attorney for Cook
County, which includes Chicago.
Video games are one of the newest and most popular forms of
artistic expression. They most resemble films and television
shows by telling stories through pictures, text, and sound, but
they also parallel popular books, such as the Choose Your Own
Adventure series, which enable readers to make decisions about
how the plot and characters will develop. Video games are
generally designed to entertain players and viewers, but they can
also inform and advocate viewpoints. They are therefore
considered protected expression under the First Amendment. See
Am. Amusement Machine Ass'n v. Kendrick, 244 F.3d 572, 579 (7th
The video game industry has adopted a voluntary rating system
to advise consumers about the content of video games. The
Entertainment Software Rating Board (ESRB), a division of the ESA, assigns ratings to games and provides content
descriptors.*fn1 The rating system is voluntary. Most video
game publishers, however, submit video games to the ESRB for
review, and most video game retailers refuse to sell or rent
games that have not been rated by the ESRB. Lowenstein Dep. at
Illinois Public Act 94-0315, which was adopted in July 2002,
expands the state's regulation of the sale and rental of video
games. The Act amends 720 ILCS 5/11-21, which criminalizes the
distribution to an individual under the age of eighteen of
material that is "harmful to minors." It also creates two new
criminal statutes: the Violent Video Games Law (VVGL) and the
Sexually Explicit Video Games Law (SEVGL). Plaintiffs challenge
the VVGL and the SEVGL, but they do not challenge the amendments
to 720 ILCS 5/11-21.
The VVGL establishes criminal penalties for selling or renting
violent video games to minors, allowing such games to be
purchased using a self-checkout electronic scanner, and failing
to label such games with a two inch by two inch label stating
"18". 720 ILCS 5/12A-25.*fn2 The statute defines "violent
video games" as those that include:
depictions of or simulations of human-on-human
violence in which the player kills or otherwise
causes serious physical harm to another human.
"Serious physical harm" includes depictions of death,
dismemberment, amputation, decapitation, maiming, disfigurement, mutilation of body parts, or rape.
Id. 12A-10(e). Violations of the statute are punishable by
fines ranging from five hundred to one thousand dollars. Id.
12A-15(a)-(c) & 12A-25(b).
The SEVGL creates criminal penalties for selling or renting
sexually explicit video games to minors, allowing such games to
be purchased using a self-checkout electronic scanner, and
failing to label such games with a two inch by two inch label
stating "18". 720 ILCS 5/12B-15; 5/12B-25. The SEVGL has two
additional requirements. Video game retailers must post eighteen
by twenty-four inch signs within five feet of every video game
display or point of sale or rental informing customers about the
ESRB rating system, and they must make brochures about the ESRB
rating system available to customers. Id. 12B-30 & 12B-35. The
statute defines "sexually explicit video games" as including:
those that the average person, applying contemporary
community standards would find, with respect to
minors, is designed to appeal or pander to the
prurient interest and depict or represent in a manner
patently offensive with respect to minors, an actual
or simulated sexual act or sexual contact, an actual
or simulated normal or perverted sexual act or a lewd
exhibition of the genitals or post-pubescent female
In adopting the VVGL and the SEVGL, the Illinois General
Assembly made findings about the accessibility of violent and
sexually explicit video games to minors. Specifically, the
legislative record includes reports by the Federal Trade
Commission and the Illinois State Crime Commission about the
ability of minors to purchase M-rated video games. In 2004, the
FTC found that sixty-nine percent of unaccompanied teenagers were
able to purchase M-rated video games, Def.'s Exh. D to 56.1(a)
Statement at BL 169. In 2005, the Illinois State Crime Commission
found that a fifteen-year old boy was able to buy M-rated games
at eleven of fifteen, or seventy-three percent, of retailers visited. Id. at BL
266-69. The 2004 FTC study also examined whether unaccompanied
teenagers could purchase analogous media products in other
formats. The FTC concluded that eighty-one percent of
unaccompanied minors could purchase R-rated movies, and
eighty-three percent could purchase music with explicit lyrics
far more than were able to purchase M-rated video games. Id. at
With regard to the VVGL, the legislative record includes
scholarly articles, news articles, written testimony, and
transcripts of House debates and House Civil Judiciary Committee
Hearings discussing the impact of violent video games on minors.
See generally Ex. D. to Def.'s Rule 56.1(a) Statement. Among
other things, the record includes seventeen scholarly articles
contending that minors become more aggressive when exposed to
media violence, including video game violence. See generally,
id. at BL 00075-00090, 000096-00131, 00328-00633. The same
person Dr. Craig Anderson authored or co-authored fourteen of
these articles; Dr. Douglas Gentile, a colleague of Dr.
Anderson's, authored one article; and Dr. William Kronenberger,
who has relied on Dr. Anderson's research in developing his own
studies, authored the other two articles. See id.
With regard to the SEVGL, the Illinois General Assembly found
"sexually explicit video games inappropriate for minors."
720 ILCS 5/12B-5. The legislative record does not include scholarly
articles or expert testimony on this issue, but there are
comments from legislators contending that the sexually explicit
content in many video games is inappropriate for children. See
e.g., Ex. D. to Def.'s Rule 56.1(a) Statement at BL 00006, 00066
(Rep. LaVia, discussing video games with "vivid pictures of
nudity," images of characters "defecating on people," and rewards
for "sleeping with prostitutes"). On July 25, 2005, the Act was signed into law. On the same day,
plaintiffs filed this lawsuit. Specifically, plaintiffs sought
declaratory and injunctive relief against enforcement of the VVGL
and SEVGL on the ground that the statutes violate their
constitutional right to free expression. The plaintiffs also
moved for a preliminary injunction to prevent the statutes from
going into effect on January 1, 2006. Defendants responded by
filing motions to dismiss for lack of standing, and, in the case
of defendants Madigan and Devine, based on their purported
immunity from suit under the Eleventh Amendment. Defendant
Blagojevich also filed a partial motion for summary judgment on
the claims regarding the SEVGL, in which defendant Madigan
On November 14 and 15, this Court held an evidentiary hearing
on the effect of violent video games on youth. With the agreement
of the parties, this Court consolidated the hearing on the
preliminary injunction with trial on the merits pursuant to Rule
65(a)(2) of the Federal Rules of Civil Procedure.
The evidence presented via live witnesses concerned two main
issues: first, whether minors who play violent video games
experience an increase in aggressive thoughts, aggressive affect,
and aggressive behavior, and second, whether minors who play such
games experience a decline in brain activity in the region of the
brain that controls behavior. The parties also agreed that the
Court could consider as evidence the affidavits that had been
submitted as part of the preliminary injunction briefing, as well
as deposition testimony of certain witnesses.
1. Effect of violent video games on aggressive thoughts and
Dr. Craig Anderson, a psychologist and professor at Iowa State
University, testified on behalf of the defendants. Dr. Anderson
summarized research, including his own, regarding the relationship between minors' exposure to violent video games and
aggressive thoughts and behavior. Based on this research, Dr.
Anderson testified that "it seems clear that exposure to violent
video games increases aggressive behavior, aggressive thinking,
physiological arousal, aggressive feelings, and is also
associated with a decrease in prosocial behavior." Tr. 212-13.
Dr. Anderson's studies on the connection between media violence
and aggressive cognition and behavior are rooted in his broader
research into aggression. Specifically, Dr. Anderson developed
his "general aggression model" to explain how an individual's
personal characteristics and experiences trigger aggressive
thoughts or responses to particular situations and how this cycle
or cycles can make aggressive thoughts and behaviors more
accessible. According to Dr. Anderson, an individual's personal
characteristics and experiences particularly with violence
prime or activate aggressive thoughts and teach aggressive
"scripts," making it more likely that he or she will have
aggressive reactions to particular situations. Tr. 212-21.
Dr. Anderson testified that playing violent video games is one
activity that primes aggressive thoughts and teaches aggressive
scripts. He stated:
In violent video games, you rehearse really the whole
sequence [of aggression]. You rehearse, you practice
being vigilant, that is, looking for the source of
the threat. You practice identifying sources of
threat. You practice making decisions about how to
respond to that threat. And eventually, you actually
carry out some form of action, typically a violent
action to deal with that threat, clicking a mouse or
something on the keyboard or a pretend sort of gun of
Tr. 227-29. As a result of regularly playing violent video games,
Dr. Anderson testified, these scripts or knowledge structures
become "chronically accessible" and ultimately become
"automatized." Tr. 229-30.
The research underlying Dr. Anderson's testimony, however, does
not support such a stark and sweeping conclusion. We begin by providing an overview
of the studies cited by Dr. Anderson to support his conclusions.
One of the articles Dr. Anderson published involved two studies
of the effects of violent video games on measures of aggression
on college students. This study provided the basis for the
Indianapolis ordinance regulating violent video games that was
struck down in Kendrick. Kendrick, 244 F.3d at 578.*fn3 In
the first study, Dr. Anderson and Dr. Karen Dill of Lenoir-Rhyne
College conducted a survey of college students regarding exposure
to violent video games and aggressive behavior, using components
of the National Youth Survey as a measure. Dr. Anderson found "a
strong positive correlation between video game exposure and
aggressive behavior." Tr. 251. He conceded, however, that once
the results were adjusted to exclude non-serious behavior, such
as throwing snowballs, less than ten percent of the participants
reported engaging in aggressive behavior. Tr. 298-302. Dr.
Anderson also indicated that exposure to violent video games only
incrementally affected the amount of aggressive behavior they
engaged in. Tr. 278-83.
In a second study, Dr. Anderson conducted an experiment in
which participants played a violent video game, Wolfenstein 3D, or a non-violent video
game, Myst. The participants were then asked to participate in
a task in which they were supposed to "compete" with someone
outside the room and administer a noise blast to the "loser"
whenever they won. Based on this experiment, Dr. Anderson
concluded that violent video games caused an increase in
aggressive behavior, because participants who played Myst
administered a longer noise blast than the participants who
played Wolfenstein 3D. In his testimony, however, Dr. Anderson
stated that the difference between the two groups was a matter of
milliseconds. Tr. 329.
Dr. Anderson also discussed three additional studies he
conducted using college students. In the first experiment, half
the students played violent video games and half played
non-violent video games. They were then given a list of partially
completed words many of which could have been completed to form
an aggressive word and asked the participants to finish the
words. The students who played the violent video game were more
likely to fill in the blank to form an aggressive word, leading
Dr. Anderson and his colleagues to conclude that exposure to the
violent video game had increased their aggressive thoughts. Tr.
In the second experiment, half the students played a violent
video game and half played a non-violent video game. They then
went through time trials in which they were led to believe they
were competing against someone in the next room. In the first
series of time trials, the participants went through a series of
time trials in which they were "punished" with a noise blast from
a "competitor" when they lost. There were, in fact, no
competitors: the noise blasts administered to the participants
were controlled by a computer. Half received random blasts, and
the other half received blasts that increased in intensity. In
the second series of time trials, the participants administered a
noise blast to their "competitor" if they won. Dr. Anderson found that the students who had played violent video game and received
random noise blasts administered more intense noise blasts than
all of the students who played the non-violent video games. He
therefore concluded that exposure to violent video games
increased an individual's aggressive behavior.
Notably, the students who played violent video games and
received increasingly intense noise blasts administered the
lowest intensity noise blasts. Though that seems to contradict
his finding, Dr. Anderson stated that previous research indicates
that results from participants who played violent video games and
received random noise blasts are more relevant. Tr. 238-40.
Though the Court is skeptical about the explanation of these
contradictory results, it is willing to assume for purposes of
discussion that Dr. Anderson's conclusion is correct. The Court,
however, questions the overall import of Dr. Anderson's findings,
given that on a one to ten scale of intensity, the most
"aggressive" violent video game players administered an average
blast of 5.93, and the least "aggressive" non-violent video game
players administered an average blast of 3.98. There was only a
two point difference, and both averages were in the middle of the
intensity scale. See Craig A. Anderson et. al., Violent Video
Games: Specific Effects of Violent Content on Aggressive Thoughts
and Behavior, 36 Advances Experimental Soc.Psychol. 199, 215-24
(2004) (hereinafter, "Violent Video Games: Specific Effects").
In the final experiment, half the students played two violent
video games and half of them played two non-violent video games.
The violent video games were subdivided into those with human
targets and those with non-human targets. They then engaged in
the same noise blast task as the participants in the second
experiment. The students who played violent video games gave
"more or higher punishment levels to their opponents than those
who played one of the nonviolent games." Tr. 241-42. Dr. Anderson's study, however,
indicates that those participants who played a violent video game
administered an average noise blast that was less than one point
higher than the average noise blast of non-violent video game
players. See Anderson, "Violent Video Games: Specific Effects"
at 229. Dr. Anderson also found that the participants' reactions
to playing a violent video game with human targets was the same
as their reactions to playing one with non-human targets. Tr.
Dr. Anderson stated that there has only been one reliable
longitudinal study into the impact of violent video games on
aggression in minors. Such studies, which examine the effects of
a particular variable at two or more points in time, are
important because they can measure longer term effects, rule out
alternative explanations for particular behavior, and help
identify the cause of a particular behavior. Tr. 312. In this
study, which is still undergoing peer review, Dr. Douglas
Gentile, a colleague of Dr. Anderson's at Iowa State University,
interviewed third-, fourth-, and fifth-graders about the level of
violence in the video games they played during the six month
period of the study. Then, using reports from parents and
teachers, he determined the child's level of aggressive behavior
at the beginning and end of the study to assess whether such
behavior had increased.
According to Dr. Anderson, Dr. Gentile's longitudinal study
showed that those children with a higher exposure to violent
video games were more likely to have been in a fight by the end
of the study, even after controlling for whether the child had
been in a fight and likely had a proclivity for aggression
before the study began. Tr. 254-261. From this longitudinal
study, Dr. Anderson concluded that "[w]hat is clear is that
regardless of the initial cause, playing violent video games
still makes children more aggressive." Def. Exh. 8, Douglas A.
Gentile and Craig A. Anderson, Violent Video Games: The Effects on Youth,
and Public Policy Implications, in Children, Culture, and
Violence, at 232 (N. Dowd et. al. eds.) (forthcoming) (emphasis
in original). The total increase in aggressive behavior between
the beginning and end of the study, however, was not very large;
there was a high (0.4 to 0.5) correlation between aggression at
the beginning and end of the study; and at most, only four
percent of the increase in aggression was associated with
exposure to video game violence. Tr. 318-21.
Finally, Dr. Anderson discussed the results of three
meta-analyses he conducted in 2001, 2003, and 2004. In a
meta-analysis, a researcher compiles all of the studies that have
been conducted in a particular area, combines the results from
those studies, and makes conclusions based on the body of
research as a whole. In each of these meta-analyses, Dr. Anderson
found that exposure to violent video games was associated with
aggressive thinking and behavior. The studies differed, however,
because he added new data and adjusted his methodology with each
meta-analysis. For example, in the 2003 meta-analysis, Dr.
Anderson conducted a separate breakdown of studies involving
participants who were eighteen or younger, and in the 2004
meta-analysis, he did a separate analysis of studies that used
"best practices."*fn4 Nonetheless, his conclusion about the
link between exposure to violent video games and aggression
remained the same. Tr. 263-64.
Dr. Jeffrey Goldstein, a social psychologist at the University
of Utrecht in the Netherlands, and Dr. Dmitri Williams, an
assistant professor of communications at the University of Illinois at Urbana-Champaign, testified for the
plaintiffs,*fn5 and they responded to Dr. Anderson's
testimony. Dr. Goldstein has conducted research into whether
video games help improve cognitive skills, Goldstein Dep. at
53-54; Dr. Williams conducted an intensive one-month study for
his doctoral dissertation on individuals who played a violent,
multi-player computer-based video game. Tr. at 152-58. They
agreed that there is a correlation between an exposure to video
game violence and increases in aggressive cognition and behavior,
but disagreed with Dr. Anderson's conclusion that the research
establishes that a exposure to violent video games causes
increases in aggressive thinking and behavior. Goldstein Dep. at
84; Tr. 130.
Dr. Goldstein and Dr. Williams shared a number of the same
concerns with the methodology and conclusions of research
regarding violent video games cited by Dr. Anderson. With regard
to methodology, they were concerned that these studies defined
aggressive thoughts and behavior vaguely (e.g., equating
aggressive play with aggressive behavior), administered
problematic tests for measuring aggression (e.g., Stroop tests
and noise blasts), used violent and non-violent video games that
were too dissimilar (e.g., Wolfenstein 3D and Myst), and
failed to address the context of game playing (e.g., asking
subjects to play for too short a time and without others around
them). Goldstein Dep. at 36, 70-71, 79-82, 89-90, 97-98, 116-18,
121; Goldstein Aff. ¶¶ 7-8, 11-12; Tr. 138-51, 157-71. With
regard to their conclusions, Dr. Goldstein and Dr. Williams noted
that Dr. Anderson not only had failed to cite any peer-reviewed
studies that had shown a definitive causal link between violent
video game play and aggression, but had also ignored research
that reached conflicting conclusions. Dr. Goldstein and Dr.
Williams noted that several studies concluded that there was no relationship between
these two variables. They also cited studies concluding that in
certain instances, there was a negative relationship between
violent video game play and aggressive thoughts and behavior
(e.g., initial increases in aggression wore off if the individual
was allowed to play violent video game for longer period).
Goldstein Aff. ¶¶ 10, 22, 41-42; Goldstein Dep. at 182-89.
Though the Court believes that many of the measures of
aggression used in violent video game research are likely valid,
we agree with Dr. Goldstein and Dr. Williams that neither Dr.
Anderson's testimony nor his research establish a solid causal
link between violent video game exposure and aggressive thinking
and behavior. As Dr. Goldstein and Dr. Williams noted,
researchers in this field have not eliminated the most obvious
alternative explanation: aggressive individuals may themselves be
attracted to violent video games. Goldstein Aff. ¶ 33; Tr. 133.
Even if one were to accept the proposition that playing violent
video games increases aggressive thoughts or behavior, there is
no evidence that this effect is at all significant. Dr. Anderson
provided no evidence supporting the view that playing violent
video games has a lasting effect on aggressive thoughts and
behavior in other words, an effect that lingers more than a
short time after the player stops playing the game. Based on
general psychological theories and long-term studies of
television and movie violence, Dr. Anderson hypothesizes that
frequently and intensely playing violent video games will have a
lasting effect on young players. Tr. 291-92. He does not,
however, cite any data or studies to back up his hypothesis. In
most studies, test subjects play a game for between ten and
seventy-five minutes, and only one study Dr. Gentile's
included an assessment of the effect of regular violent video
game play over a longer period of time.*fn6 This research is insufficient to
draw conclusions about the long-term impact of video games on
Dr. Anderson also has not provided evidence to show that the
purported relationship between violent video game exposure and
aggressive thoughts or behavior is any greater than with other
types of media violence, such as television or movies, or other
factors that contribute to aggression, such as poverty. In fact,
several of the studies he uses to support his conclusions examine
media violence generally and do not disaggregate the effect of
video game violence or compare the effects of video game violence
to these or other forms of media violence.
Finally, the Court is concerned that the legislative record
does not indicate that the Illinois General Assembly considered
any of the evidence that showed no relationship or a negative
relationship between violent video game play and increases in
aggressive thoughts and behavior. The legislative record included
none of the articles cited by Dr. Goldstein or Dr. Williams. It
included no data whatsoever that was critical of research finding
a causal link between violent video game play and aggression.
These omissions further undermine defendants' claim that the
legislature made "reasonable inferences" from the scientific
literature based on "substantial evidence." See Turner
Broadcasting System v. FCC, 512 U.S. 622, 665 (1994). 2. Effect of violent video games on brain activity
Dr. William Kronenberger, who testified for the defendants, is
a clinical psychologist at the Indiana University School of
Medicine who focuses on working with and studying children and
adolescents with behavior disorders. Tr. 12. He has conducted
research into the relationship between adolescent exposure to
media violence and aggressive thinking and behavior. Tr. 23. In
his testimony, Dr. Kronenberger cited studies that he said
indicate that increased exposure to media violence has negative
effects on adolescent brain activity.
To measure how exposure to media violence affects brain
activity, Dr. Kronenberger uses functional magnetic resource
imaging, a neuroimaging technique that measures blood flow to
certain regions of the brain, allowing researchers to infer the
level of activity in those areas. Tr. 31. Researchers use fMRI
imaging to determine how a particular task affects brain activity
by having the test subject perform the task inside an fMRI
scanner, having a control subject perform a different, but
similar task, and comparing the level of blood flow to the
relevant areas of the test subject and control subject's brains.
Dr. Kronenberger has published an article in a peer-reviewed
journal discussing a study that used fMRI imaging to examine how
exposure to media violence affects aggressive thinking and
aggressive behavior in adolescents. Tr. 24. He and his colleagues
specifically examined two parts of the brain the anterior
cingulate cortex (ACC) and the dorsolateral prefrontal cortex
(DLPFC), which is comprised of the middle frontal gyrus (MFG) and
the inferior frontal gyrus (IFG). Dr. Kronenberger's research
team decided to focus on these areas because prior research has
indicated that lower activation, deficiencies, or injuries in
these areas are associated with aggressive or violent behavior. Tr. 36.
For the experiment discussed in his article, Dr. Kronenberger's
research team recruited two groups of adolescents one consisted
of adolescents diagnosed with a behavior disorder, and the other
was a control group. Based on interviews, the researchers
subdivided the groups into those with high and low exposure to
media violence. Tr. 37-43. All of the subjects underwent fMRI
imaging, and while they were in the fMRI scanner, they performed
something called a counting Stroop test. In this test, a
multiple-digit number is flashed onto a screen. The test subject
is asked to state the number of digits, but the actual numerals
are different from the number of digits listed. Stroop tests can
be administered in a number of ways, but they are used to measure
an individual's ability to inhibit his initial impulses in favor
of a more difficult response. See Tr. 19-20.
Dr. Kronenberger and his colleagues found that the control
subjects as a whole experienced activation in the ACC and the
left DLPFC, while the adolescents with behavior disorders
experienced activation in the MFG portion of the DLPFC but no
activation in the ACC. Furthermore, when the researchers compared
the control subjects with high media exposure to the control
subjects with low media violence exposure, they found that
control subjects with high media violence exposure had activation
in the left MFG, the same region in which subjects with behavior
disorders experienced activation, but control subjects with low
media violence experienced activation in the ACC and the left
IFG. Tr. 52-53.
This experiment was part of a larger study. During the first
phase of that study, Dr. Kronenberger conducted a second
experiment, the results of which had not yet undergone the
process of peer review. In this experiment, the methodology was
the same except that while the participants were in the scanners, half watched simulated play of
a violent video game (James Bond), and the rest watched simulated
play of a non-violent game (car racing). The participants did not
actually play the games, but they were told to press a button
whenever they would have performed an action had they actually
been playing. Tr. 46-47. The researchers found that along the
axis of high versus low media violence exposure, the control
subjects with high media violence exposure experienced activation
in the IFG, and the control subjects with low media violence
exposure showed activation in the MFG. Along the axis of watching
the violent versus the non-violent video game, the control
subjects who watched the violent video game showed activation in
the left and right MFG while the subjects with behavior disorders
who played violent video games showed activity in the IFG. Tr.
During the second phase of the study, Dr. Kronenberger and his
research team expanded their research to examine how exposure to
media violence affects the amygdala, a portion of the brain that
he testified has been associated with emotional functioning,
particularly "threat arousal stimuli." The results of this
portion of the study have not yet been published in a
peer-reviewed journal. Dr. Kronberger had the test subjects
complete what he termed an "emotional Stroop color-word test."
Both the adolescents with behavior disorders and the control
subjects had to state the color of the word, but half of each
group was asked to read words of aggression or harm (i.e., "kill,
murder, rape") while half of each group was asked to read words
without violent connotations. Dr. Kronenberger found that the
control group experienced activation of the ACC and the DFC while
the adolescents with behavioral disorders showed increased
activity in the amygdala and the parahippocampal gyrus, which is
also associated with emotion. Additionally, test subjects who had
high media violence exposure also showed activation in the
amygdala and the parahippocampal gyrus while those with low media violence
exposure showed activation in the DLPFC. Tr. 68-73.
Dr. Kronenberger conceded that his studies only demonstrate a
correlative, not a causal, relationship between high media
violence exposure and children who experience behavioral
disorders, decreased brain activity in the ACC and the DLFPC, and
increased activity in the amygdala and the parahippocampal gyrus.
See Tr. 77-78.
Dr. Kronenberger has also published two articles in
peer-reviewed journals which report studies on the use of
neurocognitive testing to examine how media violence affects
cognitive activity. Tr. 28-29. In the first article, Dr.
Kronenberger reported the results of a study in which he
evaluated the impact of exposure to media violence on a child's
executive functioning the ability to plan, organize, direct,
and carry out behavior that is oriented toward a goal.
Specifically, Dr. Kronenberger used four measures to evaluate
executive functioning two neurocognitive tests performed in a
lab and two self-reporting tests. He then determined the
children's level of media violence exposure. After controlling
for a number of variables, Dr. Kronenberger found that "there was
a significant correlation between media violence exposure2026and
poorer scores on each of those four measures of executive
functioning." He ultimately concluded that the higher the media
violence exposure, the worse the test subjects performed on
measures of executive functioning. Tr. 61-64.
In his second article, Dr. Kronenberger compared adolescents
with behavior disorders and control adolescents, and evaluated
whether those with behavior disorders and their parents reported
greater exposure to media violence in the last week and in the
last year. Dr. Kronenberger found that adolescents with behavior
disorders and their parents reported more media violence exposure over the last year. After the study
concluded, he also used a post hoc analysis to examine the unique
effects of television violence and video game violence, and he
found that each was related to whether an adolescent had a
behavior disorder or was in the control group. Tr. 65-67.
Dr. Howard Nusbaum, a cognitive psychologist at the University
of Chicago, testified for the plaintiffs and responded to Dr.
Kronenberger's testimony. Dr. Nusbaum uses fMRI imaging in his
research, and he has written several articles on methodological
issues on how to conduct fMRI research and interpret the results.
Tr. 351-53. He thoroughly reviewed Dr. Kronenberger's research
and identified fundamental problems with "the background
assumptions of the work, where it starts from, the methodology
that is represented in the work and the conclusions that are
drawn." Tr. 358-59.
Initially, Dr. Nusbaum testified, Dr. Kronenberger made two
incorrect assumptions. First, he assumed a one-to-one
relationship between various parts of the brain and particular
behaviors. Dr. Nusbaum testified that particular brain activity
can affect multiple behaviors, and specific behaviors can be
influenced by activity in multiple areas of the brain.
Specifically, he stated that activity in the ACC and DLPFC the
areas Dr. Kronenberger stated were associated with impulse
control, self-regulation, choice, attention, and concentration
affect many behaviors, and the behaviors Dr. Kronenberger traces
to the frontal lobes also implicate other areas of the brain. In
fact, according to Dr. Nusbaum, "[t]hese areas certainly are not
highly associated with people who are aggressive, or activity in
these areas is certainly not highly associated with people who
are aggressive." Tr. 374-75. Second, Dr. Kronenberger assumed
that decreased activity in one part of the brain equaled impaired
or deficient brain activity. Dr. Nusbaum disagreed, stating that decreased activity can signal
expertise or use of an alternate method to complete the assigned
task. Tr. 359-68.
Next, Dr. Nusbaum discussed problems with Dr. Kronenberger's
methodology. In evaluating Dr. Kronenberger's fMRI studies, Dr.
Nusbaum noted several problems. First, the images published in
Dr. Kronenberger's study are composites of the images of all the
individuals in the study. Such images, Dr. Nusbaum explained, can
appear to show activity in areas where no individual subject
actually showed activity. Second, with regard to both types of
testing, Dr. Nusbaum stated that Dr. Kronenberger's methods for
measuring aggressive thoughts, such as the Stroop tests, the
Conners performance test, and the behavior checklist, were not
appropriate for measuring the type of behavioral control required
to prevent oneself from reacting aggressively to a situation. Tr.
368-70, 372-73, 376-77, 387-88. Third, in discussing Dr.
Kronenberger's neurocognitive testing study alone, Dr. Nusbaum
testified that such testing used particular patterns of behavior
to infer the part of the brain that was activated, but because of
the many-to-many relationship between brain regions and behavior,
it is not possible to make "those clear kinds of inferences." Tr.
Finally, Dr. Nusbaum discussed his concerns about Dr.
Kronenberger's conclusions. In discussing Dr. Kronenberger's
single published study, Dr. Nusbaum identified several problems
with the researchers' interpretation of the data. He noted that
the researchers had drawn conclusions about similarities between
the brain activity of adolescents with behavior disorders and
control adolescents with high media violence exposure and about
the alleged impairments in brain activity of these groups. Dr.
Nusbaum stated that the scans showed that the composite brain
activity of these groups differed and that it was unclear whether
they truly had decreased brain activity as compared to adolescents without behavior
disorders and with low media violence exposure. Even if the
images were read to show decreased brain activity for these
groups in certain areas of the brain, Dr. Nusbaum stated, there
were several alternative reasons, such as the development of
expertise or the use of another part of the brain to perform the
same function, that Dr. Kronenberger's research team had not
considered. Tr. 373-81.
Even if there were some deficit in brain activity, Dr. Nusbaum
noted, Dr. Kronenberger's two experiments show adolescents with
behavior disorders, and those without such disorders but high
media violence exposure, with decreased activity in different
areas in the two studies. According to Dr. Nusbaum, "I know Dr.
Kronenberger has argued that it's a different task, and so
there's different demands on it, and I agree with that, but in
respect of the model of deficit, if the brain is deficit, it
should be in both cases." Dr. Nusbaum stated that the decreased
activity in both experiments likely reflected the participants'
use of another method for completing the task, not mental
impairments. Tr. 386.
In discussing the second experiment in Dr. Kronenberger's fMRI
study the experiment in which the participants watched a
simulated video game and then took an "emotional Stroop
color-word test" Dr. Nusbaum again found that the researchers
lacked the information to make definitive conclusions because
they had not controlled for certain characteristics of their
participants. Even if they had, he said, there were several
alternative explanations for why the amygdala was activated in
adolescents with behavior disorders and control subjects with
high media violence exposure. Tr. 387-93.
Dr. Nusbaum also disputed the conclusions of the neurocognitive
study in which Dr. Kronenberger used neurocognitive testing to
evaluate whether exposure to media violence impairs executive functioning. The problem with this study,
according to Dr. Nusbaum, was that Dr. Kronenberger and his
colleagues compared the response times of the participants in the
study "raw," without accounting for the overall quickness or
slowness of the participants in any activity they engaged in. As
a result, Dr. Nusbaum testified that it was impossible to draw
any conclusions from the data as reported. Tr. 381-83.
The Court found Dr. Nusbaum's testimony credible and
persuasive, and Dr. Kronenberger's unpersuasive. Consistent with
Dr. Nusbaum's testimony, the Court finds that Dr. Kronenberger's
studies cannot support the weight he attempts to put on them via
his conclusions. The defendants have offered no basis to permit a
reasonable conclusion that, as the legislature found, minors who
play violent video games are more likely to "[e]xperience a
reduction of activity in the frontal lobes of the brain which is
responsible for controlling behavior." Tr. 356.
3. Chilling effect of the VVGL and the SEVGL
The parties submitted affidavits and deposition testimony from
the heads of the ESA, VSDA, and IRMA, and from a video game
creator, discussing their concerns about the VVGL and the SEVGL.
According to Douglas Lowenstein, president of the ESA, the VVGL
and the SEVGL will have a chilling effect on the speech of video
game creators, publishers and retailers:
by restricting the sale of games and creating a
regulatory structure that requires retailers to make
game by game decisions about what they can and cannot
sell, . . . the ripple effect of that is potential
retailers deciding not to sell wide variety of games,
therefore having a chilling effect on the speech
rights of ESA members and other people who publish
video games. Lowenstein Dep. at 101-02.
Lowenstein stated that retailer decisions "will prevent the
expression of ESA members from reaching a wide range of willing
recipients." Lowenstein Aff. ¶ 15. Because the definitions in the
VVGL and the SEVGL are vague, Lowenstein states, retailers will
make subjective individual decisions about what is regulated by
the "fairly vague and ill defined terms in the statute."
Lowenstein Dep. at 105. For example, he states that to avoid
criminal liability, certain retailers might, out of an abundance
of caution, label certain T-rated games which are, under the
ESRB ratings, acceptable for anyone thirteen or older with an
"18" sticker. According to Lowenstein, labeling games that are
not actually covered by the Act could in turn confuse consumers,
because the "18" sticker conflicts with the ESRB ratings, and
they may refuse to purchase the games due to the "scarlet letter
quality" of the label rather than because of any real concerns
about the content of the game. Id. at 126-28. Lowenstein
contends that this requirement will not educate consumers, but
will "primarily serve to stigmatize ESA members' games."
Lowenstein Aff. ¶ 18.
Additionally, Lowenstein stated, because the statutes are
extremely burdensome requiring retailers to put in long hours
to ensure compliance they will have a direct impact on what
retailers sell and how they sell it, according to Lowenstein. He
stated that this, in turn, will affect members of the ESA,
because they cannot publish products that retailers are unable or
unwilling to sell. Lowenstein Dep. at 130-31; Lowenstein Aff. ¶¶
18-19. Lowenstein conceded, however, that the ESA has no specific
indication from Illinois retailers that they would refuse to sell
or would be unable to sell video games that would require the
"18" sticker. Lowenstein Dep. at 106-07, 130-31. Lowenstein also explained that conducting more outreach and
education about the ESRB rating systems would offer an
alternative means for achieving the General Assembly's goals
while preserving plaintiffs' First Amendment rights. According to
Lowenstein, Gail Markels, a representative of the ESA, shared
this proposal with the Illinois House Civil Judiciary Committee
and Governor Blagojevich, contending that this alternative would
be effective because "as the FTC has found, parents are involved
in 83% of video game purchases for minors." Both the General
Assembly and Governor Blagojevich rejected this proposal.
Lowenstein Aff. ¶¶ 21-23.
Crossan Andersen, president of the VSDA, discussed the effect
of the statutes on home video retailers. He stated that the
statutes placed an immense burden on retailers and the
"affirmative defenses provided in the Act do not reduce the
burden." Andersen Aff. ¶¶ 16-17. Andersen discussed the issue
with VSDA members in Illinois who expressed "[a] conviction that
they could not determine what could be covered." Andersen Dep. at
51-52. He stated that "it is impossible for VSDA's members to
determine with any degress of certainty whether any number of the
titles in their inventories is covered by the definition of
`violent video games'" because of the pace of certain games
(e.g., there is no way of knowing what actually happened to a
character in the last screen) and the special powers possessed by
many of the characters who appear "human" in video games.
Andersen Aff. ¶ 10-11.
Andersen said his members also expressed "grave concern" about
the "message that would be conveyed" by the "18" sticker required
on violent and sexually explicit video games. Andersen Dep. at
91. In discussing the burden posed by these requirements,
Anderson noted three problems: the labels would be particularly
large, they would force retailers to eliminate product
information they consider important, and they would conflict with
the message retailers seek to advance (e.g., displaying games that are T-rated by the
ESRB with an "18" label). Andersen Dep. at 51-52; Andersen Aff. ¶
12; 18-19. Andersen expressed concern that the "18" symbol will
create a stigma that:
M-rated, T-rated, or even lower rated games carrying
the "18" label will no longer be perceived as
products which simply contain material some parents
might find unsuitable for their children (like
R-rated or PG-13-rated movies) and instead be treated
as though they were sexually explicit adult products
Andersen Aff. ¶ 22. As a result, he states that some adult
customers will be chilled from acquiring such games. Id.
Andersen stated that his members were concerned about the
"particularly obtrusive" signage requirements. Andersen Dep. at
51-52; 89-91. He expressed concern that this requirement would
force retailers to communicate regarding the ESRB rating system
in a way that they have not chosen for themselves and that the
requirement that signs be placed at multiple locations will be
extremely burdensome. Andersen Aff. ¶ 13. Andersen conceded that
he did not know of any members who conducted research into the
burdens or cost of meeting the requirements out in the VVGL and
the SEVGL. Andersen Dep. at 51-52; 87-89.
Andersen stated that the ban on use of self-scanning machines
to purchase or rent the regulated games would be extremely
burdensome, but he stated that he had not heard any concerns
specifically about the legislation's self-scanning ban. Andersen
Aff. ¶ 15; Andersen Dep. at 51-52; 89-91.
Finally, Andersen noted that many retailers rent video games
under contracts with their customers. These agreements allow
customers to designate family members, including children, to
rent video games on an account and enable customers to set
limitations on the types of games their children can rent. According to Andersen, "[t]his Act
burdens retailers and their customers (who are consenting parents
under these agreements) by obligating the retailer to disregard
the parent's wishes and instead restrict their children to the
"18" rating imposed by the state." Andersen Aff. ¶ 23.
David Vite, the president and chief executive officer of IRMA,
discussed the impact of the VVGL and the SEVGL on Illinois
retailers. He stated that IRMA members had expressed concerns
about many of the statutes' provisions. First, he stated that the
labeling requirement would be burdensome and confusing.
Multi-state retailers would have to require their Illinois stores
to individually label the regulated materials, and they would be
forced to make a "subjective judgment on what is violent or
sexually explicit." To make that decision, the retailer would
have to play the entire game and determine, "based on 102 state's
attorneys' judgments, what is violent or sexually explicit."
Id. at 63-65. Vite conceded that no studies had been done to
calculate the costs imposed by this requirement. Id. at 72-76.
Vite stated that parents would be confused to find potentially
conflicting ESRB ratings and "18" stickers on the game,
particularly with regard to M-rated games that the ESRB considers
appropriate for seventeen-year olds but that might be subject to
the Illinois labeling requirement. Id. at 66-67.
Second, Vite discussed the burdens of the requirement to post
signs regarding the ESRB rating system. He stated that members
were worried about the costs but agreed that he did not have a
definite figure about the actual costs of printing and hanging
the signs. He also stated that members were concerned about the
number and location of the places where a retailer would be
required to place these signs, both because they would displace
other marketing information and because they would be difficult
to maintain. As an example, he referenced stores with sixty cash registers or points of sale, which would have to maintain a sign
at every cash register. If a sign were to fall down, "a state's
attorney or some other person [could] raise the issue that [the
signs] were not at the point of sale," leaving the store open to
criminal liability and damage to its reputation. Id. at 79-83.
Finally, Vite stated that the statute's limitations on the use
of self-scanning machines to purchase regulated games would be
unduly burdensome. He did, however, concede that there are
members of IRMA who have self scanning machines but have
developed alternate ways of selling products, such as alcohol and
cigarettes, that are prohibited to individuals under a certain
age. Id. at 86-88.
Ted Price, the president and chief executive officer of
Insomniac Games, discussed the chilling effect of the VVGL and
SEVGL on video game creators. He stated that "game creators not
only strive to entertain their audiences but to communicate
messages and ideas including a variety of political, social, and
moral commentary." Price Aff. ¶ 4. Price stated that the Illinois
statutes would chill those messages, because the Act's definition
of violence particularly the phrase "human-on-human violence"
is so vague that creators will be unable to determine what is
regulate, forcing them to eliminate anything in their games that
resembles violence. As way of example, Price stated that he
"would feel very uncomfortable about including even cartoon
violence," such as the type included in Insomniac Games' T-rated
Ratchet and Clank series. Id. ¶¶ 7-10 (noting that Ratchet
and Clank's characters are humanoid, not human, but could be
misinterpreted by some retailers as human). Discussion
In deciding whether to grant permanent injunctive relief, a
court must consider whether the plaintiff has succeeded on the
merits; whether it has an adequate remedy at law or will be
irreparably harmed if the injunction does not issue; whether the
threatened injury to the plaintiff outweighs the threatened harm
the injunction may inflict on the defendant; and whether the
granting of the injunction will harm the public interest. See,
e.g., Plummer v. Am. Institute of Certified Public Accountants,
97 F.3d 220, 229 (7th Cir. 1996). With this standard in mind, we
examine the Violent Video Game Law and the Sexually Explicit
Video Game Law in turn. Initially, however, we address
defendants' motions to dismiss based on Eleventh Amendment
immunity and plaintiffs' purported lack of standing.
1. Eleventh Amendment Immunity
Defendants Madigan and Devine have moved to dismiss this case
on the grounds that they are immune from suit under the Eleventh
Amendment. Generally, the Eleventh Amendment bars suits against a
state or state officials. There is an exception, however, for
suits to enjoin the enforcement of unconstitutional statutes. Ex
Parte Young, 209 U.S. 123 (1908). Under Ex Parte Young, a
state official may be sued so long as he or she has "some
connection with the enforcement of the Act." Id. at 157.
Defendant Madigan argues that she is not involved with local
enforcement of criminal statutes, and defendant Devine states
that he is not involved with the enforcement of misdemeanors like
the one created by the Act. Plaintiffs note that if these arguments succeeded, there likely would be no one for them to sue
to challenge the Act.*fn7
The Court disposed of the defendants' arguments in an oral
ruling at the outset of the hearing on November 15, but we
nonetheless repeat our reasoning here. The Court finds that
because Attorney General Madigan is charged with instituting
proceedings on behalf of the state; representing the state in
appellate criminal proceedings; providing advice and assistance
to state's attorneys regarding state law; and conducting criminal
investigations and prosecutions at a county prosecutor's request,
she has a sufficient connection to enforcement of the statute to
permit a suit against her under Ex Parte Young. With regard to
defendant Devine, the Court finds that the fact that he is
charged with instituting prosecutions under the state criminal
laws in Cook County provides a sufficient connection to
enforcement of the Act to enable suit against him to enjoin its
enforcement. For these reasons, neither defendant Madigan nor
defendant Devine is immune from suit in this case.
To establish its standing to sue, an associational
organization, like each of the plaintiffs in this case, must show
"(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to
the organization's purpose; and (c) neither the claim asserted
nor the relief requested requires the participation of individual
members in the lawsuit." Hunt v. Wash. State Apple Adver.
Comm'n., 432 U.S. 333, 343 (1977). Defendants argue that the
ESA, VSDA, and IRMA have not provided a factual basis to
establish standing, and that they are precluded from establishing standing because of
conflicts of interest between the associations and their members.
The Court rejects defendants' arguments and finds that
plaintiffs have standing to sue. Each of the plaintiff
associations was created to serve the business and public affairs
interests of its members, which include the creators and
publishers of video games (ESA), home video retailers (VSDA), and
Illinois retailers (IRMA). The members of these associations rely
on the ESA, VSDA, and IRMA to file suits like this to protect
their rights, and they will experience a chilling effect on their
free speech rights if the VVGL and SEVGL go into effect. See
generally Lowenstein Dep. (ESA); Price Dep. (ESA Member);
Andersen Dep (VSDA); Vite Dep. (IRMA). Moreover, despite
defendants intimations, there is no indication of a conflict of
interest among the various associations' members. The Court
therefore finds that the plaintiffs have standing to bring this
3. Constitutionality of VVGL Sale, Rental, and Check-Out
The First Amendment embodies a principle that is at the core of
our political system and our national ethos: "each person should
decide for himself or herself the ideas and beliefs deserving of
expression, consideration, and adherence." Turner Broadcasting
System, 512 U.S. at 641. A law that restricts speech because of
its message "contravenes this essential right." Id. For this
reason, content-based regulations are presumptively invalid.
R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992).
All parties agree that the VVGL is a content-based regulation
subject to the strictest scrutiny under the First Amendment.
R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). Under this standard, the state may impose a content-based
restriction on speech only if it has a compelling interest and
has chosen the least restrictive means to further this interest.
Sable Communications of California, Inc. v. FCC, 192 U.S. 115,
126 (1989). Defendants identify five interests in regulating
violent video games that they claim are compelling, including
preventing violent, aggressive, and asocial behavior; preventing
psychological harm to minors who play such games; eliminating
societal factors that may inhibit the physiological and
neurological development of its youth; facilitating the
maturation of Illinois' children into law-abiding, productive
adults; and assisting parents in protecting their children from
such games. 720 ILCS 5/12A-5(d)-(h).
The Court agrees that the legislature has a compelling interest
in preventing violent behavior by children, protecting children
from violence, and assisting parents in achieving the same goals.
When the state defends a regulation of speech as a means to
"prevent anticipated harms," however, "it must do more than
simply `posit the existence of the disease sought to be cured.'"
Rather,"[i]t must demonstrate that the recited harms are real,
not merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way." Turner
Broadcasting System, 512 U.S. at 664. Legislative determinations
about the scope of a particular harm and the benefits of a
potential solution must be accorded substantial deference, but
they are not insulated from meaningful judicial review. A court
must consider the facts bearing on an issue of constitutional law
to ensure that the legislature drew "reasonable inferences based
on substantial evidence." Id. at 666.
The plaintiffs's challenge to the VVGL is, contrary to
defendants' claims, governed by the Seventh Circuit's decision in
Am. Amusement Machine Assoc. v. Kendrick, 244 F.3d 572 (7th Cir. 2001). In Kendrick, the Seventh Circuit examined the
constitutionality of an Indianapolis ordinance which limited the
access of minors to video game machines deemed "harmful to
minors" that were located in public places, such as movie
theaters and arcades. The ordinance defined a video game machine
that was "harmful to minors" as one that depicted "graphic
violence" or "strong sexual content" that "predominantly appeals
to minors' morbid interest in violence or minors' prurient
interest in sex, is patently offensive to prevailing standards in
the adult community as a whole with respect to what is suitable
material for persons under the age of eighteen (18) years, [and]
lacks serious literary, artistic, political or scientific value
as a whole" for minors. The plaintiffs in Kendrick only
challenged the provisions regarding video game machines depicting
graphic violence. Id. at 573.
The Seventh Circuit applied strict scrutiny to the ordinance.
Initially, the court noted that minors have First Amendment
rights and that it is essential that they have access to a wide
range of speech to prepare them for adulthood. The court found
that stories of the kind told in books, art, movies, television,
and more recently, video games, are essential to shaping
children's understanding of the world. The court recognized that
such stories often include violence, but "[t]o shield children
right up to the age of 18 from exposure to violent descriptions
and images would not only be quixotic, but deforming; it would
leave them unequipped to cope with the world as we know it."
Id. at 576-78.
The court found that the city lacked a compelling interest in
limiting minors' access to violent video game machines. The city
argued, citing one of Dr. Anderson's studies, that allowing
minors to play violent video games is harmful to public safety.
See id. at 578 (citing Craig A. Anderson & Karen E. Dill,
Personality Processes and Individual Differences: Video Games and Aggressive Thoughts, Feelings, and Behavior in the
Laboratory and Life, 78 J. Personality & Soc. Psych 772
(2000)). The court, however, found that the studies reported in
Dr. Anderson's article did not provide a compelling interest for
regulating the video games targeted in the ordinance, because
they did not establish that playing violent video games causes
minors to commit violent acts, contributes to any increases in
the juvenile crime rate, or poses any greater harm than other
forms of media. Id. at 578-79.
The Illinois General Assembly's main justifications for the
VVGL were three legislative findings about the effect of playing
video games on minors' physiological and neurological
development. Specifically, the legislature found that minors who
play violent video games are more likely to:
(1) Exhibit violent, asocial, or aggressive behavior.
(2) Experience feelings of aggression.
(3) Experience a reduction of activity in the frontal
lobes of the brain which is responsible for
720 ILCS 5/12A-5(a)(1)-(3). Because these findings are the bases
for the compelling interests asserted by the defendants, we
examine each in turn.
Defendants first contend the VVGL is justified by a compelling
state interest in preventing violent and aggressive behavior on
the part of minors. There is no question that this is an
important societal interest. But when it comes to regulating
expression protected by the First Amendment, the state may
regulate only expression that meets the requirements of
Brandenburg v. Ohio, 395 U.S. 444 (1969). See, e.g., James v.
Meow Media, Inc., 300 F.3d 683, 698 (6th Cir. 2002). As Justice
Kennedy stated for the Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), "[t]he government may not
prohibit speech because it increases the chance an unlawful act
will be committed `at some indefinite future time.'" Id. at 253
(quoting Hess v. Indiana, 414 U.S. 105, 108 (1973) (per
curiam)). Rather, under Brandenburg, the State may regulate
protected expression based on the belief that it will cause
violence only if the expression is directed to inciting or
producing imminent lawless action, and is likely to incite or
produce such action. Brandenburg, 395 U.S. at 447; see also,
Free Speech Coalition, 535 U.S. at 253.
Defendants have come nowhere near making the necessary showing
in this case. First, they have offered no evidence that the
violent content in video games is "directed to inciting or
producing imminent lawless action." Brandenburg,
395 U.S. at 447 (emphasis added). Rather, the only evidence in the record is
that video games are designed for entertainment. And second, the
evidence they offered regarding the purported effects on minors
of playing violent video games does not even approach
Brandenburg's requirement that violent video games are "likely
to" produce "imminent" violence. As the Sixth Circuit put it in
James, the "glacial process of personality development" that
violent video games allegedly effect "is far from the temporal
imminent that we have required to satisfy the Brandenburg
test." James, 300 F.3d at 698; see also, Kendrick,
244 F.3d at 578-79.
Indeed, defendants have failed to present substantial evidence
showing that playing violent video games causes minors to have
aggressive feelings or engage in aggressive behavior. At most,
researchers have been able to show a correlation between playing
violent video games and a slightly increased level of aggressive
thoughts and behavior. With these limited findings, it is
impossible to know which way the causal relationship runs: it may
be that aggressive children may also be attracted to violent video games.
One unpublished article by Dr. Anderson's colleague Dr. Gentile
that concludes there is a causal relationship between violent
video game play and aggression in children. The evidence is not,
however, sufficient to establish a compelling interest in
regulating the games at hand. There is no evidence that the games
played by the children in this study are the same as or similar
to the games regulated by the VVGL or that video games are more
likely to increase aggressive thoughts and behavior than other
components of children's media diet or non-media factors, such as
poverty. Kendrick, 244 F.3d at 578-79.
Next, there is barely any evidence at all, let alone
substantial evidence, showing that playing violent video games
causes minors to "experience a reduction of activity in the
frontal lobes of the brain which is responsible for controlling
behavior." 720 ILCS 5/12A-5(a)(3). Defendants rely heavily on
this finding because it is based on research by Dr. Kronenberger
that was unavailable when the Seventh Circuit decided Kendrick
in 2001. This finding, however, is unsupported by scientific
As discussed earlier in this decision, Dr. Kronenberger's study
and the General Assembly's findings do not show a causal
relationship, as Dr. Kronenberger conceded in his testimony. Tr.
77-78. Dr. Nusbaum's testimony persuasively shows the legislature
was simply incorrect in concluding that the frontal lobes of the
brain are responsible for controlling behavior; no such
one-to-one relationship exists. And as Dr. Nusbaum persuasively
testified, decreased activity does not necessarily indicate
diminished capacity; it can signify expertise or use of an
alternative mental method of achieving the same goal. Dr.
Kronenberger's research, which formed the basis of the General
Assembly's finding, failed to consider these alternative explanations which shows a basic flaw in the legislature's
reasoning. Finally, and in any event, Dr. Kronenberger's
published research concerns media violence generally; it does not
focus on the effects of violent video games.
Defendants also contend that the VVGA serves a compelling state
interest in preventing developmental or psychological harm to
minors. Again, this is a legitimate societal and parental
concern. But it does not provide a basis for restricting
expression protected by the First Amendment. In this country, the
State lacks the authority to ban protected speech on the ground
that it affects the listener's or observer's thoughts and
attitudes. "The government `cannot constitutionally premise
legislation on the desirability of controlling a person's private
thoughts.' Free Speech Coalition, 535 U.S. at 253 (quoting
Stanley v. Georgia, 394 U.S. 557, 566 (1969)). As Justice
Jackson stated over a half-century ago, "[t]he priceless heritage
of our society is the unrestricted constitutional right of each
member to think as he will. Thought control is a copyright of
totalitarianism, and we have no claim to it. It is not the
function of our Government to keep the citizen from falling into
error; it is the function of the citizen to keep the Government
from falling into error." American Communications Assn. v.
Douds, 339 U.S. 382, 442-443 (1950) (Jackson, J., concurring in
part and dissenting in part). These concerns apply to minors just
as they apply to adults. If controlling access to allegedly
"dangerous" speech is important in promoting the positive
psychological development of children, in our society that role
is properly accorded to parents and families, not the State.
Defendants also contend that the state has a compelling
interest in assisting parents who want to limit their children's
ability to access violent video games. Specifically, defendants
point to reports in the legislative record indicating that
unaccompanied minors find it easy to purchase M-rated video games, many of which have violent themes. In 2004,
the FTC found that sixty-nine percent of unaccompanied teenagers
were able to purchase M-rated video games, and in 2005, the
Illinois State Crime Commission found that a fifteen-year old boy
was able to buy M-rated games at 11 of 15 or seventy-three
percent of retailers visited. Def.'s Exh. D to 56.1(a) Statement
at BL 169, 266-69. Defendants, however, fail to discuss two
important facts. First, the FTC has found that seventy percent of
parents report being involved with selecting their children's
video games, and eighty-three percent purchase video games
themselves or with their children. See FTC, Marketing Violent
Entertainment to Children: A Review of Self-Regulation and
Industry Practices in the Motion Picture, Music Recording, and
Electronic Game Industries 42 (Sept. 2000). Second, the FTC has
found that other segments of the entertainment industry are even
worse at ensuring that unaccompanied minors are unable to
purchase explicit material.
While there has been no study of Illinois specifically, the
2004 FTC study cited by defendants shows that eighty-one percent
of unaccompanied teenagers could purchase R-rated DVDs, and
eighty-three percent could purchase music with explicit lyrics
far more than were able to purchase M-rated video games. Id. at
152, 160. The state may have a compelling interest in assisting
parents with regulating the amount of media violence consumed by
their children, but it does not have a compelling interest in
singling out video games in this regard. In fact, the
underinclusiveness of this statute given that violent images
appear more accessible to unaccompanied minors in other media
indicates that regulating violent video games is not really
intended to serve the proffered purpose. See Florida Star v.
BJF, 491 U.S. 524, 540 (1989) (finding cause of action based on
identifying rape victim by "instrument of mass communication"
alone raised "serious doubts about whether [the state] is, in
fact, serving . . . the significant interests which [it] invokes); Kendrick,
244 F.3d at 578-79 (expressing skepticism about whether singling out video
games for regulation would achieve purported goals if other
violent media still available); Hays Cy. Guardian v. Supple,
929 F.2d 111 (5th Cir. 1992) (finding university regulation
prohibiting distribution of certain newspapers but not others
undercut purported interest in reducing "commercialism").
Defendants suggest that Ginsberg v. State of New York,
390 U.S. 629 (1968), which permitted enhanced regulation of
distribution to minors of material that would be obscene to them,
authorizes a similar enhancement in the case of material
depicting violence. But Ginsberg does not provide the state
with general authority to regulate speech that is deemed harmful
to minors; rather it concerned obscene material, which is not
entitled to First Amendment protection. Id. at 635. As the
Eighth Circuit has stated, "Ginsberg did not involve protected
speech (like the speech at issue in this case). . . . Nowhere in
Ginsberg (or in any other case we can find, for that matter)
does the Supreme Court suggest that the government's role in
helping parents to be the guardians of their children's
well-being is an unbridled license to government to regulate what
minors read and view." Interactive Digital Software Ass'n v. St.
Louis County, 329 F.2d 954, 959-60 (8th Cir. 2003). See also,
Video Software Dealers Ass'n v. Maleng, 325 F. Supp. 2d 1180,
1188 (W.D. Wash. 2004). To put it another way, "the government
cannot silence protected speech by wrapping itself in the cloak
of parental authority." Interactive Digital, 329 F.3d at 960.
Even were defendants able to establish a compelling interest in
regulating violent video games, they have not demonstrated that
the VVGL is narrowly tailored to serve such a purpose. Defendants
argue that the VVGL's limitations on selling and renting violent
video games to minors are narrowly tailored because they do not restrict the
rights of adults to buy or rent these materials for themselves or
their children. In making this argument, however, defendants cite
cases, including Ginsberg, that regulate sexually explicit
materials, speech that has been found unprotected in certain
instances with regard to minors. As the Seventh Circuit made
clear in Kendrick, however, "[v]iolence and obscenity are
distinct categories of objectionable depiction," subject to
different levels of scrutiny. Kendrick, 244 F.3d at 574. In the
present context, the fact that the VVGL facially restricts only
minors' access to violent video games is not sufficient to
demonstrate that the statute is narrowly tailored to achieve a
compelling interest. Indeed, the vagueness of the VVGL's
definition of violent video games makes it highly probable that
game makers and sellers will self-censor or otherwise restrict
access to games that have any hint of violence, thus impairing
the First Amendment rights of both adults and minors.
Plaintiffs also challenge the VVGL on vagueness grounds. They
argue that the definitions of "violent" and the affirmative
defense of "complete knowledge" are unconstitutionally vague.
Because we agree that the definition of violent video games is
unconstitutionally vague, we do not reach the question of whether
the defense of complete knowledge also fails due to vagueness.
Though "we can never expect mathematical certainty from our
language," the Supreme Court nonetheless requires precision in
prohibiting conduct that "abuts upon sensitive areas of First
Amendment freedoms." Grayned v. City of Rockford, 408 U.S. 104,
109-10 (1972) (recognizing that vague statutory language
"operates to inhibit the exercise of (those) freedoms" and
"lead[s] citizens to steer far wider of the unlawful zone than if
the boundaries of the forbidden areas were clearly marked.").
This precision is no less a requirement when the regulation in question is aimed at protecting children:
[i]t is essential that legislation aimed at
protecting children from allegedly harmful expression
no less than legislation enacted with respect to
adults be clearly drawn and that the standards
adopted be reasonably precise so that those who are
governed by the law and those that administer it will
understand its meaning and application.
See Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676
689 (1968) (citations omitted).
The VVGL defines "violent video games" as those that:
include depictions of or simulations of
human-on-human violence in which the player kills or
otherwise causes serious physical harm to another
human. "Serious physical harm" includes depictions of
death, dismemberment, amputation, decapitation,
maiming, disfigurement, mutilation of body parts, or
720 ILCS 5/12A-10(e). Plaintiffs argue that the use of the terms
"human," "serious physical harm," and "depictions of or
simulations of" are unduly vague. Initially, we note that our
agreement with defendants that the term "depictions of or
simulations of" is not unconstitutionally vague: this phrase is
simply used to indicate that the characters depicted in video
games are not actual human beings.
We agree with plaintiffs, however, that in the video game
context, the Act's definition of "violent video games" is vague
because it is unclear what falls into the category of "human" and
what conduct constitutes "serious physical harm." Video games
create multiple worlds of fiction: some resemble reality, others
are devoid of reality, and many fall somewhere in between. Some
video game characters depict human beings; others represent
aliens, zombies, mutants, and gods; and still others have
characters that transform over the course of a game from humans
into other creatures or vice versa. Some of these characters will
"suffer" injuries that would be fatal to a normal human being,
but will nonetheless survive due to super powers; others may
appear to die but come back to life.
Undoubtedly, the VVGL's definition of "violence" as
"human-on-human violence" in which a "human" is "kill[ed]" or
suffers "serious physical harm" would be crystal clear in most
contexts. As a mechanism for regulating a fanciful medium,
however, this definition leaves video game creators,
manufacturers, and retailers guessing about whether their speech
is subject to criminal sanctions. See Grayned, 408 U.S. at 112
(recognizing that whether certain terms are vague depends on the
context of the criminal regulation). It is also open to
subjective interpretation and enforcement by law enforcement
officers who may apply the law in an "arbitrary and
discriminatory" way. See id. at 109. For these reasons, the
Court concludes that because the definition of "violent video
games" in the VVGL is unconstitutionally vague, the statute fails
for this reason as well.*fn8
Finally, at oral argument, defendants conceded that there is no
independent justification in for preserving the self-scanning ban
in the VVGL if the Court strikes down the limitations on selling
or renting the material to minors. Tr. 458.
4. Constitutionality of the Sexually Explicit Video Game Law
Obscene speech is one of a few highly circumscribed areas in
which the First Amendment permits content-based restrictions.
See, e.g., R.A.V., 505 U.S. at 382-83; Roth v. United States,
354 U.S. 476 (1957). To provide special protection to minors,
regulation of speech that is obscene for minors may encompass speech that would
not be obscene for adults. See Ginsberg v. New York,
390 U.S. 629 (1968).
In Ginsberg, the Supreme Court upheld a variable approach to
defining and regulating material that was obscene for minors. The
statute in question prohibited the sale to minors under the age
of seventeen of material deemed "harmful to minors" because it:
(1) predominately appeals to the prurient, shameful
or morbid interest of minors; (2) is patently
offensive to prevailing standards in the adult
community as a whole with respect to what is suitable
material for minors; and (3) is utterly without
redeeming social importance for minors.
Id. at 632-33. The Court held that "the concept of obscenity
may vary according to the group to whom the questionable material
is directed or from whom it is quarantined." According to the
Court, the "harmful to minors" provision "simply adjust[ed] the
definition of obscenity to social realities by permitting the
appeal of this type of material to be assessed in terms of the
sexual interests of minors." Id. at 637-38; see Roth,
354 U.S. at 513. The Court found that this variable approach to
obscenity was appropriate because "the power of the state to
control the conduct of children reaches beyond the scope of its
authority over adults" given minors' unique characteristics,
including immaturity. Ginsberg, 390 U.S. at 638-39.
In the Seventh Circuit, the law is clear: the State "may not,
consonant with the First Amendment, go beyond the limitations
inherent in the concept of variable obscenity in regulating the
dissemination to juveniles of `objectionable' material." Cinecom
Theaters Midwest States v. City of Ft. Wayne, 473 F.2d 1297,
1302 (7th Cir. 1973).*fn9 There is no question that under
this standard, the SEVGL, which includes the first two prongs of the
Supreme Court's obscenity test but omits the third prong, goes
beyond regulating material that is obscene for minors. See
Miller v. California, 413 U.S. 15, 24 (1973). It is therefore
not subject to the deferential standard of review for juvenile
obscenity regulations applied in Ginsberg. 390 U.S. at 639-43.
The question, then, is what standard of review applies to
statutes, like the SEVGL, that regulate minors' access to
sexually explicit materials but do not adhere to Ginsberg's
approach for proscribing material that is obscene as to minors.
Plaintiffs contend that the SEVGL is a content-based restriction
of speech that is subject to, and ultimately fails, strict
scrutiny. Defendants argue that the SEVGL is subject to rational
basis review because it regulates minors' access to sexually
explicit materials. Alternatively, they argue that even if the
Court applies strict scrutiny, the SEVGL should survive review.
The Court agree with plaintiffs that the SEVGL is a
content-based restriction on speech subject to strict scrutiny.
Defendants contend that even though the statute regulates
non-obscene speech, the Court should apply a lower standard of
review because these statutes are intended to protect children.
The Supreme Court has applied a lower standard of review to
regulations of non-obscene speech to protect children, but only
in the limited context of television and radio broadcasting. In
FCC v. Pacifica, 438 U.S. 726 (1978), the Court found that
because broadcast media is a "uniquely pervasive presence in the
lives of all Americans" and is "uniquely accessibly to children,
even those too young too read," the state may regulate the
broadcast of sexually explicit material that is not obscene for adults or
children. Id. at 748-51 ("We simply hold that when the
Commission finds that a pig has entered the parlor, the exercise
of its regulatory power does not depend on proof that the pig is
More recently, however, the Court has made it clear that
context is significant. In evaluating regulations of non-obscene,
sexually explicit material in the fields of cable broadcasting
and the Internet, the Court found them to be content-based and
subject to strict scrutiny, despite the fact that "[t]he
overriding justification for the regulation is concern for the
effect of the subject matter on young viewers." See United
States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 811
(2000); Reno v. ACLU, 521 U.S. 844, 853-55, 868-70
(1997).*fn10 Defendants have failed to show that video games
are sufficiently similar to broadcast radio and television, to
justify applying a lower standard of review in the instant case.
See Pacifica, 438 U.S. at 750-51 (noting that the audience,
including children, is "constantly tuning in and out" to
broadcasting such that prior warnings cannot protect listeners or
viewers from offense). Rather, sexually-explicit video games,
which almost always have ESRB content descriptors, and which
individuals must decide to obtain and play, are more analogous to
sexually-explicit images on the Internet, which usually bear
warnings and are not encountered unwillingly. See Reno,
521 U.S. at 853-55. We therefore evaluate the SEVGL's regulations of
non-obscene, sexually explicit video games under strict scrutiny.
Playboy, 529 U.S. at 811; Reno, 521 U.S. at 868-70. We
conclude that the SEVGL fails to meet this standard. Assuming that the state has a compelling interest that
justifies regulating the material prohibited by the SEVGL, the
statute is not narrowly tailored to achieve those interests.
Defendants argue that the SEVGL is narrowly tailored because it
does not infringe on adults' access to these materials. The cases
they cite, however, are inapposite. Defendants cite Denver Area
Educ. Telecommunic. Consortium v. FCC, 518 U.S. 727 (1996) and
Pacifica for the proposition that restrictions on non-obscene,
sexually explicit material are narrowly tailored so long as
adults could still access such speech. In large part, however,
the holdings in these cases were also based on the fact that they
arose in the broadcasting context. See Denver Area,
518 U.S. at 744-45; Pacifica, 438 U.S. at 750-51.
Defendants also cite several Court of Appeals cases that uphold
regulations on displaying and selling sexually explicit material
because they enabled adults to access such material. They ignore
the fact, however, that all of these statutes regulated material
that was "harmful to minors" under the approach outlined in
Ginsburg and Miller. See, e.g., Crawford v. Lungren,
96 F. 3d 380 (9th Cir. 1996) (upholding prohibition on selling material
that is "harmful to minors" in vending machines); Upper Midwest
Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389 (8th
Cir. 1986) (upholding requirement that material that is "harmful
to minors" be displayed in a sealed wrapper); M.S. News Co. v.
Casado, 721 F.2d 1281 (10th Cir. 1983) (upholding sale or
display of material that is "harmful to minors" in areas
accessible to minors).
The Court agrees with plaintiffs that by deviating from the
Ginsburg/Miller definition of material that is "harmful to
minors" by omitting the "as a whole" limitation on the second
prong and omitting the third prong entirely, the SEVGL regulates
an unconstitutionally vague amount of speech and is therefore not
narrowly tailored. In support of their argument, plaintiffs cite the Reno case. In that case, the Supreme Court overturned
provisions of the Communications Decency Act that prohibited the
communication of sexually explicit images and text that was
deemed inappropriate for minors. One of the many reasons that the
Court overturned those provisions was that the definition of
prohibited material did not include the "serious value" prong of
the Miller test for obscenity. As a result, the Court found
that the statute would result in the suppression of "large
amounts of nonpornographic material with serious educational or
other value." Reno, 521 U.S. at 877.
The SEVGL poses the same problem, and it is compounded by the
fact that it eliminates the requirement that the material be
considered "as a whole." By way of example, we cite God of War,
one of the games submitted by plaintiffs. In this game, set in
ancient Greece, a Spartan warrior named Kratos must kill Ares,
the god of war. Throughout the game, he faces difficult
challenges and receives assistance from legendary Greek gods, and
the player learns about his difficult life from intermittent
flashbacks. At the end of the game, Kratos learns that he is in
fact the son of Zeus and becomes a god.
During the game, there are several scenes depicting women whose
breasts are visible. In one scene, the main character is shown
near a bed where two bare-chested women are lying. It appears
that the main character may have had sexual relations with the
women. Because of this one scene, a game such as God of War,
which essentially parallels a classic book like The Odyssey,
likely would be prohibited for minors under the SEVGL, because
the statute allows a game to be regulated based on one scene
without regard to the value of the game as a whole. Such a
sweeping regulation on speech even sexually explicit speech
is unconstitutional even if aimed at protecting minors. Plaintiffs also contend that two terms in the SEVGL are vague:
"sexually explicit" and "complete knowledge." Again, we do not
consider whether the term "complete knowledge" in the SEVGL is
vague, because we find the definition of "sexually explicit" is
vague, making the statute unconstitutional on that ground alone.
Plaintiffs contend that the definition of "sexually explicit"
video games in the SEVGL is unconstitutionally vague because it
omits the "serious value" prong of Miller as applied to minors.
We have already outlined the standards for a vagueness challenge.
In support of their argument, plaintiffs cite Reno, a case in
which the Supreme Court also considered a prohibition on
distributing material to minors that was "patently offensive."
Although the language of the statute in Reno tracked the first
prong of the Miller test for obscenity, it completely omitted
the other two prongs, which require that the work as a whole
appeal to the prurient interest and that it lack serious value.
See Reno, 521 U.S. at 873-74.
Defendants are correct that the Court ultimately decided Reno
on overbreadth, not vagueness grounds. Nonetheless, the Court
thoroughly evaluated the vagueness of the statute and indicated
that it was unconstitutionally vague precisely because it omitted
the second two prongs of Miller. See Reno, 521 U.S. at 870-74.
The Court noted that each of part of the Miller test
"critically limits the uncertain sweep of the obscenity
definition." Id. at 873. The "serious value" prong, in
particular, reduces undue vagueness by establishing "limitations
and regularity" on what is categorized as obscenity so that there
is a "national floor" for material considered as having socially
redeeming value. Id. at 874. In this case, because the SEVGL
eliminates the "serious value" prong, it eliminates an important
baseline for speakers: their video games may have social value
for minors at a national level, but they are subject to the whim
of community determinations regarding the patent offensiveness and prurient
appeal of even a single image in one of their video
Because the SEVGL particularly its definition of "sexually
explicit" is vague and not narrowly tailored, the Court holds
that its sale, rental, and check-out provisions are
5. Labeling, Signage, and Brochure Provisions
In evaluating the labeling provisions of the VVGL and the SEVGL
and the signage and brochure provisions of the SEVGL, we must
first determine the standard of review to be applied. Defendants
maintain that the Court should apply the lower "commercial
speech" standard for disclosures, disclaimers, and warnings. See
Zauderer v. Office of Disciplinary Counsel of the S. Ct. of
Ohio, 471 U.S. 626, 651-52 (1985). Under Zauderer, state
mandated commercial disclosures are subject to rational basis
review where they provide "purely factual and uncontroversial
information" intended to "dissipate the possibility of consumer
confusion or deception." See id. at 651. The provisions in
question, however, do not meet the parameters set in Zauderer.
First, the requirement that the all violent and
sexually-explicit video games bear an "18" sticker discloses no
factual information: it tells parents and children nothing about
the actual content of the games, and it creates the appearance that
minors under eighteen are prohibited from playing such games.
Unlike labeling requirements that have been upheld under the
commercial speech test, the question whether a game is violent or
sexually-explicit is a subjective evaluation left to the
discretion of the retailer. See, e.g., Nat'l Electr. Mfrs. Ass'n
v. Sorell, 272 F.3d 104, 113-14 (2d Cir. 2001) (upholding
requirement to label products with mercury).
Second, with regard to all of the provisions, defendants have
offered no evidence that there is any actual confusion or
deception of parents or children about the ESRB rating system or
the content of the games necessitating these measures. For these
reasons, neither the labeling, signage, or brochure requirements
in the VVGL or the SEVGL meet the parameters for applying the
lower standard of review set forth in Zauderer.*fn12
Instead, we agree with plaintiffs that these requirements are
compelled speech subject to strict scrutiny. See Riley v. Nat'l.
Fed'n. of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988). Specifically, compelled speech "penalizes the expression of
particular points of view and forces speakers to alter their
speech to conform with an agenda that they do not set." See Pac.
Gas & Elec. Co. v. Pub. Util. Comm'n of Calif., 475 U.S. 1, 9
(1985). In the instant case, the labeling, signage, and brochure
requirements target those video game creators, manufacturers, and
retailers who choose to include violence and sexual content in
their games. The labeling requirement forces retailers to affix a
label that may obscure their own message about the content of the
game (i.e., the ESRB ratings) and contradict their own opinion
about the content of the game (e.g., putting the "18" label on an
T-rated game considered appropriate for thirteen-year olds). The
signage and brochure requirements require retailers to take the
ESRB rating system a message developed by the video game
industry and supported by retail merchants and present it in a
manner mandated by the State.
Defendants offer no independent defense of the Act's labeling,
signage, and brochure provisions other than to argue that they
are subject to the lower level of review for commercial speech
requirements. The Court therefore finds that these provisions do
not withstand review.
7. Permanent Injunction
Plaintiffs are unquestionably entitled to a permanent
injunction barring enforcement of both the VVGL and the SEVGL.
They have succeeded on the merits, and they have proved the other
requirements for a permanent injunction. First, the loss of
plaintiffs' First Amendment freedoms "unquestionably constitutes
irreparable injury." Brownsberg Area Patrons Affecting Change v.
Baldwin, 137 F.3d 503, 507 (7th Cir. 1998). Second, plaintiffs
have no adequate legal remedy for this infringement, which
includes the chilling effect that the statutes will have on plaintiffs' creation and distribution of video games. See
National People's Action v. Village of Wilmette, 914 F.2d 1008,
1013 (7th Cir. 1990 ("[I]njunctions are especially appropriate in
the context of first amendment violations because of the
inadequacy of money damages."). Finally, the balance of equities,
both with regard to the defendants and the public, favors entry
of an injunction. Specifically, the public itself as an interest
in ensuring that the plaintiffs' First Amendment rights are
protected to ensure the availability of various forms of
expression, including video games, to the broader society. See
O'Brien v. Town of Caledonia, 748 F.2d 403, 408 (7th Cir. 1984).
For the reasons stated above, the Court finds in favor of the
plaintiffs and denies defendants' motions to dismiss (docket nos.
42, 45, 51) and their motion for partial summary judgment (docket
no. 63). The Clerk is directed to enter judgment in favor of the
plaintiffs. Plaintiffs' motion for a preliminary injunction is
denied as moot (docket no. 20). The defendants are permanently
enjoined from enforcing the Violent Video Games Law and the
Sexually Explicit Video Games Law of the Act.
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